Court To Hear Plea To Revoke Limits on Title I

In a case that could redefine church-state relations, the U.S.
Supreme Court will reconsider its 1985 ruling that barred public
schools from sending teachers into religious schools to provide
remedial education.

The court agreed this month to accept appeals from the New York City
school board and a group of Roman Catholic school parents who are
urging the justices to overturn the ruling in Aguilar v.
Felton.

The sides pressing the current appeal are being backed by the
Clinton administration, which filed a brief shortly before the November
election arguing that the Felton ruling has required school
districts to use costlier and less effective methods of providing
federal Title I services to eligible children in religious schools.

Students in private schools have been eligible for remedial aid
since the program started in 1965. But the court held in the
Felton case that the presence of public educators in religious
schools was unconstitutional because of the "excessive entanglement"
between public and religious schools.

The 1985 ruling threw Title I services for religious school pupils
into chaos as districts across the country scrambled to come up with
alternatives.

The court's Jan. 17 announcement that it will take the case is the
product of a 2-year-old strategy by the New York school system to get
the issue back before the justices. Five members of the Supreme Court
are on record stating that the Felton ruling should be
overturned or at least reconsidered.

A reversal of the decision in the new appeal is not assured,
however. The high court signaled that it is concerned about whether it
is proper to use the same case to reconsider one of the court's own
precedents. The New York system's Title I program for religious school
students was at issue in the 1985 case as well as in the current
appeal.

The court asked the lawyers in the case to address the procedural
issue as well as the merits of the original ruling.

The new case is based on the consolidated appeals in Agostini
v. Felton and Chancellor of the Board of Education of New
York v. Felton (Case Nos. 96-552 and 96-553). The Supreme
Court will hear arguments in the case in April and is expected to issue
a ruling by July.

1978 Lawsuit

A high court ruling overturning the 1985 decision would mean that
school districts could once again send Title I teachers into religious
schools. Title I is the federal government's main program for providing
extra educational help to poor children.

"We're very happy they are going to reconsider it," Stephen J.
McGrath, a lawyer for the New York City schools, said of the Supreme
Court's action this month.

Any ruling will also inflame the larger debate over government aid
to religious schools.

"We are concerned that a ruling on this issue will signal a massive
change in existing [church-state] law," said Lisa H. Thureau, the
executive director of the National Committee for Public Education and
Religious Liberty, a New York City-based group known as PEARL that
mounted the original lawsuit against the school system in 1978. "In the
context of the push for vouchers, this could have enormous
effects."

In the years since the Felton decision, many districts,
including the New York City schools, have relied principally on mobile
classrooms that are parked near the grounds of religious schools to
hold Title I classes for students from those schools.

The New York school board says that each vehicle costs more than
$100,000 a year to lease and operate. In recent years, the district has
leased 126 mobile classrooms to serve about 22,000 religious school
children eligible for Title I services in New York.

In addition to backing the original challenge to New York City's
Title I program, PEARL has challenged the district's alternative
delivery methods. The group argues in a separate lawsuit pending before
lower federal courts that public school officials have acceded to the
demands of Catholic and Jewish schools by paying for mobile classrooms
and other costly means rather than simply requiring religious school
students to travel to public schools for Title I services.

Procedural Fight

PEARL has also vigorously opposed the process by which the New York
City board brought its case back to the Supreme Court.

"I can't help but be furious at this method of trying to reopen the
case," Ms. Thureau said.

Two years ago, the New York school board asked its lawyers to figure
out a way to get the issue back into court. The district chose to ask a
federal judge to grant it relief from the 1985 ruling because the
decision had been undermined by subsequent opinions from the Supreme
Court.

The city was relying primarily on an unrelated 1994 high court case
that touched on Title I services, Board of Education of the Kiryas
Joel Village School District v. Grumet. In separate opinions
in that case, five justices indicated that they considered the
Felton ruling hostile to the nation's tradition of religious
accommodation and suggested it should be overruled or reconsidered.

The district judge and the U.S. Court of Appeals for the 2nd Circuit
ruled that they could not overturn the Supreme Court's Felton
ruling themselves, but that the New York district was on solid
procedural ground and thus could appeal to the high court. ("N.Y.C. Gets Go-Ahead To Seek Felton
Reversal," May 29, 1996.)

Exceptional Case

The Supreme Court is hesitant to overturn any of its precedents. The
fact that the New York district is back before the court asking for
relief from the very ruling it lost more than a decade ago makes the
case even more unusual.

In papers filed with the court, PEARL called the district's
procedure for getting back before the high court a "monstrosity" with
no basis in federal court rules.

"I'm glad the Supreme Court wants to hear more about the procedural
issue," Ms. Thureau said.

The Department of Justice argued in its brief that such a second
appeal in the same case would normally be inadvisable because of the
legal system's interest in the "finality of litigation."

However, the department said, the New York case is exceptional, and
there are "no other cases available to present the issue of
reconsideration of [Felton] in the foreseeable future."

In several cases where church-state groups have lost challenges to
alternative ways of providing Title I services, the groups have
declined to appeal to the Supreme Court, realizing it would give the
court a chance to overturn Felton.

Read Lemon
v. Kurtzman. Text of the 1971 U.S. Supreme Court decision
that declared spending public funds for religious schools constitutes
the establishment of religion and therefore violates the U.S.
Constitution.

Read Engel
v. Vitale. This 1962 U.S. Supreme Court decision established
that an official state prayer for public schools is unconstitutional --
even if the prayer is denominationally neutral and pupils who wish to
do so may remain silent or be excused from the room while the prayer is
being recited.